Dáil Éireann - Volume 127 - 21 November, 1951
Private Deputies' Business. - Abolition of Capital Punishment-Motion.
Mr. MacBride Mr. MacBride
Mr. MacBride: I move:—
That Dáil Éireann is of the opinion that a Select Committee of the House should be appointed to examine and report to the Dáil on the question of the desirability of the abolition of capital punishment.
The first point I want to make clear at the outset is that in this motion I have refrained from asking the House to commit itself to the abolition of capital  punishment. My only request at this stage is that the House should set up a committee to examine the question and report back to the House. I hope that this motion can be considered away from any atmosphere of Party controversy and that we may be able to approach this topic objectively and without any unnecessary conflict among different Parties in the House. If the House adopts the motion there will be a later opportunity, naturally, to consider in much greater detail and with a great deal more preparation the substantive proposals that may emanate from the committee that is set up.
Presumably, too, the Select Committee set up by the House will have an opportunity of obtaining all the relevant data relating to capital punishment. A matter of this kind would be better considered by a committee of the House than by a specially constituted commission. It is essentially a matter upon which Deputies would be in a position to exercise judgment and also to sense the public opinion of the country.
It is probably no exaggeration to say that the concept of capital punishment had its origin in barbarism. Originally it was based on the concept of revenge—private revenge in the first place, which gave place gradually with the organisation of society to a more organised form of revenge. That outlook persisted over a very considerable period of time. Gradually the revenge motive ceased or was, shall we say, placed more in the background, and gave way to the concept of punishment. But even for a period of time the concept of punishment was not very far removed from the original idea of revenge. Gradually, as time went on, it became more necessary probably to justify capital punishment, and different reasons were given for it. One reason given was that it was used as a deterrent, as a preventive. That applied not merely to capital punishment, but to other forms of penal punishment.
Mr. S. Flanagan Mr. S. Flanagan
Mr. S. Flanagan: On a point of order. From the Official Report of last Thursday, column 974, I notice  that the Tánaiste said that the House would meet on Wednesday from 3 o'clock until 10 o'clock.
An Leas-Cheann Comhairle Cormac Breslin
An Leas-Cheann Comhairle: That is an error. It should be 10.30.
Mr. MacBride Mr. MacBride
Mr. MacBride: We are in the position in Ireland of having adopted the penal code and a great many other institutions here without really examining them on their merits. They were part of the legal and political structure handed to us at the time that we obtained control of our own affairs. By reason of many historical factors that occurred immediately afterwards there was never any objective examination of that penal code, and in a great many respects our penal code at the moment—our legal code generally, I might say—is very out-dated, because whereas in England a great many alterations have been made in the legal code generally and in the penal code also, we have not kept pace with the alterations that have been made. I do not say that by way of criticism of this House or of Governments. I am merely suggesting it as a fact which I think any lawyer knows. The same, I think, applies to our punishment code.
If the question were put to us at the time we obtained control of our own affairs, I doubt whether we would have adopted capital punishment. I think that very few of those who composed the first Dáil and the second Dáil would in those days have considered the adoption of capital punishment. The natural tendency would have been against it. I doubt, too, whether the people of the country, if the matter were referred to them, would be particularly anxious for capital punishment. It has been associated in the course of our history with many events which caused a revulsion of feeling amongst our people.
There are many grounds upon which one can attack capital punishment, there are many grounds on which one can defend it and I do not propose to review all these grounds here. I propose to mention some of the principal ones that would influence my viewpoint in considering this question. The first one, and it is one which may  not be shared by many, is that I take the view that if the State assumes the right to take life and gives effect to that decision it is not unlikely that other persons, possibly persons who very often are not well balanced, persons who are not normal—and it is mainly people who are not normal who commit crime—may not realise that they have not got the same right as the State.
I am not denying the right of the State to take life. I think the State has that right, but that it should limit the exercise of that right to cases where it is essential for the preservation of society. I do not think that the State should ever take life unless it is absolutely necessary for the preservation of society. Certainly, it should not take life by way of revenge. It should not take life by way of punishment, merely for the sake of inflicting punishment. The only circumstances in which the State is entitled to take life I think is where it is the only way left by which the State can protect society.
The minute the State takes life, a person who is not well balanced may well argue to himself in justification, quite wrongly and illogically: “If the Government are entitled to execute somebody, to take life, why am I not entitled to do it?” I am not saying that that is a valid argument. I do not think it is a good argument, but it is an argument that certainly the unbalanced mind will readily put forward.
Linked with this particular argument is the question as to whether or not capital punishment is a deterrent. I think that experience has proved in those countries where capital punishment has been done away with that capital crimes have not increased. On the contrary, in many of these countries capital crimes have decreased. It is very difficult to be ever absolutely certain that an increase or a decrease in crime is due to any particular change in the form of punishment or in the law that prevails. Be that as it may, I think it is fairly clear that there has been no substantial increase in capital offences in countries where capital punishment has been abolished.
Unfortunately, I left a notebook in  which I had some notes on this subject at home, and I have not now got with me a full list of the countries where capital punishment has been done away with; but, broadly speaking, I think the position is that capital punishment has been done away with in the Scandinavian countries—Sweden, Norway, Denmark —in Holland and Belgium, and I think in most of the Swiss Cantons, not all of them, and in a number of other European countries, including Italy in recent times. It has also been done away with in a number of States in the United States of America—in Michigan, Rhode Island, Maine, Minnesota, Wisconsin, Kansas, North Dakota and South Dakota. Most of the central and South American Republics have also done away with capital punishment. In quite a number of countries it has been abolished, except in relation to the crime of treason in time of war or emergency.
It does appear to me that the experience of these countries points to the fact that the abolition of capital punishment has not led to any increase in serious crimes. Reverting, then, again to the proposition I propounded a few moments ago that the State should only take away life where it is absolutely necessary for the preservation of society, a query is immediately raised in our minds as to whether or not, in view of the experience gained in other countries, the maintenance of capital punishment is necessary here for the preservation of society.
In many respects I think capital punishment creates a morbid attraction which, on occasion, actually helps to promote crime. I have had a good deal of experience in criminal cases and I have often come across criminals who had a morbid desire for publicity coupled with a morbid interest in capital charges. I think that has been the experience of a great many lawyers who practise in the criminal courts. Capital charges certainly arouse a morbid and unhealthy interest in the minds of a large section of the public, an interest which I think ought not to be encouraged.
In the course of this discussion I  hope that some of my colleagues here who are lawyers will express their views on this particular matter. I have not really discussed the matter with any of my lawyer colleagues but I would like to warn the House in advance against their views because it has been the experience in most countries, and certainly in England, that lawyers as a whole and judges in particular, have always been strongly in favour of the retention of capital punishment. In the past they were strongly in favour of maintaining capital punishment for the offence of larceny.
The House will remember no doubt that up to 120 years ago a person could be executed for stealing 5/- or over. There were no less than 200 offences on the Statute Book in respect of which persons could be executed. Various efforts were made in England—not here, of course, because we had not control over our own destiny—to remove the death penalty from a number of these offences. All efforts made for the abolition of the death penalty from this long string of minor offences were strenuously opposed for a period of about 20 years by the judges and by some of the leading lawyers in England.
It might be well that I should refer the House now to some of the statements that were then made by the then British Lord Chancellor when dealing with capital punishment. Lord Ellenborough, speaking in the British House of Lords on a measure dealing with the abolition of capital punishment in regard to larceny said:
“I trust that your Lordships will pause before you assent to an experiment pregnant with danger to the security of property, and before you repeal a statute which has so long been held necessary for public security. I am convinced with the rest of the judges, public expediency requires that there should be no remission of the terror denounced against this description of offenders. Such will be the consequence of the repeal of this statute that I am certain depredations to an unlimited  extent would be immediately committed.
My Lords, if we suffer this Bill to pass, we shall not know where we stand: we shall not know whether we are on our heads or our feet, Repeal this law and see the contrast—no man can trust himself for an hour out of doors without the most alarming apprehensions that on his return, every vestige of his property will be swept off by the hardened robber.”
The position was such that a Select Committee was set up by the British House of Commons to examine the whole position and this Select Committee published a report in 1819 dealing with the opposition of the judges and the lawyers.
This paragraph from their report I think is applicable probably to the present day as regards judges and lawyers. I am not saying that in derogation of the profession, but I think it explains probably their attitude on the matter. I quote from this report:
“Highly as the committee esteem and respect the judges, it is not from them that the most accurate and satisfactory evidence of the effect of the penal law can reasonably be expected. They only see the exterior of criminal proceedings after they are brought into a court of justice. Of the cases which never appear there, and of the causes which prevent their appearance, they can know nothing. Of the motives which influence the testimony of witnesses, they can form but a hasty and inadequate estimate. Even in the grounds of verdicts, they may often be deceived. From any opportunity of observing the influence of punishment upon those classes of men among whom malefactors are most commonly found, the judges are, by their stations and duties, placed at a great distance.”
So that already, 100 years ago, the British House of Commons reached the conclusion that lawyers' views and judges' views on this question were not necessarily the most useful views to have. It was, as a result of the establishment of this Select Committee, that, I think, in the year 1820, capital  punishment in respect of larceny was done away with.
Another reason which certainly influences my viewpoint in approaching this whole subject is my lack of absolute confidence in human judgment. I think that the courts and the judges, like Governments, are all quite liable to make mistakes, and often do make mistakes. It is just too bad when a mistake is made in regard to a man who has been executed. It is all right when a man has only been sent to prison. Here, in this City of Dublin, we have had in recent years, at least, I think, two cases in which men were convicted of different offences after trial by a judge and jury, and sentenced to various terms of penal servitude. In one of these cases, if my memory does not lead me astray, the trial judge said that he agreed entirely with the jury's verdict. Yet, after these two men had served a period of their sentences, it was found that there had been a miscarriage of justice, and they had to be released by the Minister for Justice.
I suppose these mistakes are unavoidable, and one does not blame anybody for them, but one wonders what happens in a case where a similar mistake is made and a man has been hanged. I know from my own experience that certainly in one case, not a political case, in which I was involved as a lawyer, I had grave doubts as to the accused man's guilt. These doubts have been greatly intensified since, but nothing can be done. It is too late. Are we entitled to take these risks? Deputies know how we all make mistakes, no matter how sincerely we try to avoid making mistakes. We know how unreliable the human memory is; we know how impressionable people's minds are; we know how, in everyday life, each and all of us make mistakes of fact and mistakes of recollection. How often have you thought that you left a certain paper in a certain place, or your bunch of keys on the mantelpiece, and afterwards found it in your pocket? How often have you, in error, suspected somebody of having done something on you, and then discovered afterwards that he had not.
All these mistakes occur in criminal trials just as well as in everyday life.  They are probably even more pronounced in criminal trials because, when witnesses are put on the stand, there is a certain glamour and a certain air of publicity. A certain partisanship develops inevitably, and people are inclined to make mistakes and to stand over the mistakes they make. That, in my view, is an additional reason for not inflicting a punishment which it is beyond the power to remit.
I think that very few people who commit serious crime ever, in advance, consider the consequences of the crime. In most cases they are people who are not normal. Very few normal people will commit murder. The person who is not normal is hardly likely, in advance, to consider the consequences of the crime. Some capital offences may be committed by people when they lose their temper, and when they are acting under the impact of some strong emotional passion. In these cases, too, I think it is unlikely that the person will, in advance, have an opportunity of considering the consequences of the crime. To those who do, the very small percentage of people who commit serious crime and who would have an opportunity of contemplating in advance the consequences of the crime for themselves, I think that the dread of a life sentence of imprisonment is probably a greater deterrent than capital punishment itself. I move the adjournment of the debate.
Dáil Éireann 127 Private Deputies' Business. Abolition of Capital Punishment-Motion.